9.  The applicant was born in 1950 and is currently detained in Carstairs Hospital, Lanarkshire.
10.  On 8 September 1967 the applicant, then aged 17, was convicted, after a guilty plea, of culpable homicide. The court was satisfied on the oral evidence of two consultant psychiatrists that the applicant was suffering from “mental deficiency”, a mental disorder within the meaning of the Mental Health (Scotland) Act 1960 and such as would warrant his detention (sections 6 and 23(1)). It ordered that he be detained in a mental hospital under a hospital order. It also made an order restricting his discharge from detention without limit of time (sections 55(1) and (7) and 60(1) of the 1960 Act). Although one doctor gave the opinion that the applicant suffered from a psychopathic or personality disorder, this was not the basis for the detention.
11.  On 24 April 1972 the applicant escaped from the State hospital but was recaptured the same day.
12.  By no later than 1980, he was no longer regarded as suffering from a mental deficiency. The sole medical basis for his detention since that date has been a diagnosis of anti-social personality or psychopathic disorder.
13.  After 1983, patients under a restriction order were provided with the opportunity of applying annually to the sheriff to obtain discharge. According to the Mental Health (Scotland) Act 1984 (“the 1984 Act”), the criteria for admission for both civil and criminal patients were amended. Section 17 provided that where the mental disorder from which the person suffered was a persistent one manifested only by abnormally aggressive or seriously irresponsible conduct (that is, a psychopathic or anti-social personality disorder), he could only be detained where medical treatment was likely to alleviate or prevent a deterioration of his condition. This reflected general medical pessimism as to the benefits of medical treatment for psychopaths. The sheriff was required to release a restricted patient where the patient was not suffering from a mental disorder making it appropriate for him to be detained in a hospital for medical treatment, or it was not necessary for the health and safety of the patient or the protection of other persons that he receive such treatment (section 64 of the 1984 Act).
14.  In 1985 the applicant was transferred to an open hospital. On 6 August 1986 he reoffended, was arrested and remanded to prison. He was charged on a summary complaint with the assault and attempted abduction of an 8-year-old child. Psychiatric reports were obtained from two consultant psychiatrists. In their reports of 14 August 1986, both referred to the applicant’s personality disorder but neither considered him to be suffering from mental disorder making it appropriate for him to receive hospital treatment. He was found sane and fit to plead. Accordingly, on conviction of assault and attempted abduction by a sheriff on 26 September 1986, he was sentenced to three months’ imprisonment, not to a hospital disposal.
15.  On completion of his sentence in prison, the applicant was recalled to the State hospital by the Secretary of State on the basis of the 1967 hospital and restriction orders, pursuant to section 68(3) of the 1984 Act. This had been on the recommendation of a consultant psychiatrist consulted by the Secretary of State, who in his report of 8 August 1986 found that there was no continuing evidence of mental subnormality or of any evidence of mental illness other than persistent abnormally aggressive or seriously irresponsible conduct. While he was not convinced that the applicant’s period of treatment in the open hospital had improved his behaviour in any consistent fashion, the only possible reason to continue his detention in hospital was to attempt to modify his aggressive and seriously irresponsible conduct. In his view the only appropriate type of hospital management would be the more secure and structured organisation within the State hospital. It was further noted that the incident with the child raised grave doubts concerning the safety to other people of allowing the applicant to be released from institutional care and it was for that reason that he recommended the applicant’s return to the State hospital. On 7 October 1986, on the day of the applicant’s release from prison, the applicant was transferred back to the State hospital.
16.  The applicant sought discharge from hospital on a number of occasions. Between February 1987 and June 1994 he obtained some eighteen reports from six psychiatrists, the majority of which were to the effect that he did not suffer from a mental disorder of a nature or degree justifying continued detention as he was not treatable. Some of the reports indicated that the continuing detention was leading, or was likely to lead, to a deterioration of his condition and that he required rehabilitation from his institutionalisation. Between August 1986 and May 1994, ten psychiatric reports on the applicant were prepared for government agencies by eight psychiatrists, in which varying opinions were also given as to the applicant’s amenability to treatment.
17.  The applicant’s appeals to the sheriff on 29 February 1988, 20 October 1988, and 12 May 1992 for absolute or conditional discharge were unsuccessful.
18.  On 8 April 1994, the applicant lodged a further appeal with the sheriff under section 63(2) of the 1984 Act. Between May and June 1994, psychiatric reports were prepared. On 14 June and 1 July 1994, the sheriff heard evidence.
19.  On 19 July 1994 the sheriff rejected the applicant’s application for discharge. He noted that it was common ground that the onus of proof lay on the applicant to satisfy him, on the balance of probabilities, that the conditions in section 64(1)(a) or (b) were made out (see “Relevant domestic law and practice” below, paragraph 32). He had before him the written and oral evidence of seven consultant psychiatrists. He found that they were unanimous that the applicant suffered from a mental disorder, namely a persistent and permanent psychopathic/anti-social personality disorder, manifested by abnormally aggressive and seriously irresponsible behaviour. In the event of the applicant being released, he found there was a very high risk of his reoffending and that any such offence was likely to have a sexual connotation. He accepted that the evidence was such that the applicant’s disorder would not be likely to justify his admission to hospital had his original offence been committed in 1994 and noted that the majority of the opinions were to the effect that the applicant’s condition was not curable and that the medical treatment provided by the State hospital had not alleviated and would not alleviate his condition. However, he nonetheless found that the applicant’s disorder was severe and that it was appropriate for him to be detained in a hospital for medical treatment. He stated that nowhere in the Act did it state that a criminal ordered by the High Court to be detained without limit of time should be discharged if his condition was not being alleviated. However, in any event, he agreed with Dr White, the medical officer responsible for the applicant, who stated in his report:
“... in the structured setting of the State hospital in a supervised environment [the applicant’s] anger management improves, resulting in his being less physically aggressive. There is evidence that when this structure or supervision is lessened [the applicant] poses more of a danger to others e.g. his abuse of parole ... Medical treatment has alleviated his condition and should continue to do so.”
20.  The sheriff also referred to Dr Smith’s report which stated:
“At that time (1967) he was emotionally immature and illiterate. Since then there have been marked improvements in his educational attainments. He has benefited from nursing and medical care in the stable environment provided by the State hospital.”
21.  The sheriff concluded:
“The majority medical opinion is that rehabilitation should take place in another hospital. It is a matter for Dr White to consider whether he can prepare the applicant for a transfer; and it is for Dr White to decide and not for me to advise. Presumably rehabilitation will alleviate his condition. ... I am told that psychiatrists would today be unlikely to recommend admission to the State hospital. However, the applicant was properly admitted and detained and I have not been satisfied that he is now not suffering from a mental disorder of a nature or degree which makes it appropriate for him to be liable to be detained in a hospital for medical treatment.”
22.  No appeal lay against the sheriff’s decision.
23.  On 28 February 1995 the Secretary of State received notice that the applicant had applied for legal aid to challenge the sheriff’s decision by way of judicial review application. In March 1995 legal aid was refused. On 16 October 1995 the Secretary of State received intimation of the applicant’s fresh application for legal aid. On 17 November 1995 legal aid was granted by the Scottish Legal Aid Board.
24.  On 21 February 1996 the applicant lodged a petition with the Outer House of the Court of Session for judicial review of the sheriff’s decision, claiming that the sheriff had erred in law or that he had reached a decision on the appeal which was irrational having regard to the evidence. A hearing took place on 16 May 1996 before Lord Rodger. On 29 May 1996 Lord Rodger dismissed the petition, finding that the sheriff’s conclusion that it was appropriate that the applicant should be liable to be detained in hospital for treatment was entirely justifiable. He dismissed the applicant’s claim that the sheriff had imposed an excessively high burden of proof on the applicant, considering that the sheriff had applied the proper standard and had made a positive finding that he was satisfied that it was appropriate for the applicant to be detained for treatment.
25.  On 14 June 1996 the applicant renewed his application to the Inner House of the Court of Session. On 28 June 1996 the case was sisted (adjourned) to enable the applicant to apply for legal aid. On 30 August 1996 the Scottish Legal Aid Board granted legal aid. On 7 November 1996 the applicant applied to end the adjournment. On 12 November 1996 the Inner House recalled the sist. On 23 January 1997 a hearing was set for 24‑26 June 1997. The hearing took place.
26.  On 22 August 1997 the Inner House of the Court of Session allowed the appeal and quashed the decision of the sheriff. It held that in the case of a psychopath the discharge criteria in section 64 of the 1984 Act incorporated the “treatability” criterion in section 17 of the Act, namely the criterion that, in the case of a person suffering from a mental disorder manifested only by abnormally aggressive or seriously irresponsible conduct, the medical treatment must be such as was likely to alleviate or prevent a deterioration in his condition. Having reviewed the evidence, it found that the sheriff had wrongly concluded that the applicant was treatable and that the sheriff was obliged to discharge a restricted psychopathic patient who was not treatable.
27.  On 11 November 1997 the Secretary of State appealed to the House of Lords. On 9 December 1997 and 25 February 1998 the parties agreed to an extension of time to lodge court documents. On 31 March 1998 the case was set down for hearing on 12 and 13 October 1998.
28.  Following that hearing, on 3 December 1998, the House of Lords allowed the appeal. In their judgment, the Lords agreed with the Inner House that the treatability criterion was incorporated into the discharge criteria in section 64 but rejected its approach to the evidence. They held that treatment which alleviated the symptoms and manifestations of the underlying medical disorder of a psychopath was treatment within the meaning of section 17(1), even if the treatment did not cure the disorder itself. They found that the Inner House, on a judicial review application, was not entitled to substitute its own opinion as to the applicant’s treatability for that of the sheriff, although it could have done so on an appeal.
29.  Lord Hutton said, inter alia:
“It is clear that there was a difference of opinion between the seven psychiatrists who gave evidence before the sheriff. The sheriff recognised this and stated that ‘the majority opinion among the witnesses was that the medical treatment provided by the State hospital had not alleviated and would not alleviate his condition’. But the sheriff referred to the evidence of Dr Chiswick, who was in favour of an absolute discharge of the [applicant], and who stated that ‘Dr White’s plans for anger management etc. would be regarded by him as treatment’. And it is clear ... that the sheriff accepted the opinion of Dr White, who was the responsible medical officer for the [applicant] that the anger management of the [applicant] in the structured setting of the State hospital in a supervised environment resulted in his being less physically aggressive. In other words, it was Dr White’s opinion that the symptoms of his underlying condition were alleviated and this led the sheriff to the conclusion that medical treatment ‘should continue’ to alleviate his condition.
Therefore in my view contrary to the opinion of the Inner House the Lord Ordinary was right to decide that, given the evidence which was before the sheriff, it would be wrong to hold that no sensible sheriff could have reached the decision which he did.”
30.  Lord Hutton adverted to the danger which could arise under the mental health provisions that a sheriff could be obliged to release an untreatable psychopath who might well harm members of the public. The balancing of the protection of the public against the claim of a psychopath convicted many years ago that he should not continue to be detained in hospital when medical treatment would not improve his condition was, however, an issue for Parliament to decide, not the judges.